Bogoevski and Secretary, Department of Social Services (Social services second review)

Bogoevski and Secretary, Department of Social Services (Social services second review) [2019] AATA 4481 (6 November 2019)
Division:GENERAL DIVISION
File Number: 2019/0772
Re:Mr Cane Bogoevski
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal: Ms Anna Burke AO, Member
Date:6 November 2019
Place:Melbourne

The Tribunal sets aside the decision under review and in substitution determines that Mr Bogoevski satisfies all the requirements of section 94 of the Social Security Act 1991 and thereby qualified for the Disability Support Pension as at the date of his claim.
....................[sgd]....................................................
Ms Anna Burke AO, Member
Catchwords
SOCIAL SECURITY – application for disability support pension – whether qualified – cardiovascular disease, hypertension and hypoglycaemia; alcohol abuse disorder; mental health condition - whether impairment attracts rating of 20 points or more under Impairment Tables – whether program of support had been undertaken – decision under review set aside.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011(Cth)
Secondary Materials
Social Security Guide
REASONS FOR DECISION
Ms Anna Burke AO, Member
INTRODUCTION

Mr Bogoevski (the Applicant) is seeking a second tier review of the decision made by the Secretary, Department of Social Services (the Respondent) to refuse to grant the Applicant a Disability Support Pension (DSP) pursuant to section 94 of the Social Security Act 1991 (the Act).
On 26 February 2018 Centrelink found that Mr Bogoevski was not entitled to the DSP, as he did not meet the requirements of the Act. Centrelink is the service provider for the Department of Human Services.
The application was heard on 3 October 2019. Mr Bogoevski was self-represented and Ms Cailin Farrell, of Sparke Helmore Lawyers, appeared for the Respondent. The Tribunal was assisted by an interpreter in the Macedonian language. The Applicant gave evidence under affirmation and was cross-examined by Ms Farrell.
THE ISSUES IN CONTENTION
The issues in contention are whether Mr Bogoevski:
(a)has a physical, intellectual or psychiatric impairment;
(b)has a condition which has been fully diagnosed, treated and stabilised and is likely to continue for at least two years;
(c)has a fully diagnosed, treated and stabilised condition or conditions which attract 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
(d)has a continuing inability to work.
BACKGROUND
Mr Bogoevski is 58 years of age. He currently resides in rented accommodation on his own, following his separation from his wife. He completed year eight education in Macedonia where he worked on the family farm and as a cleaner. He then migrated to Australia in 1997. In Australia he worked as a cleaner, in factories and last worked in a leather factory. He ceased work in 2013 due to his relationship breakdown and a workplace incident. He has not worked since. He has basic English language skills, has attended English language classes, does not drive and utilises public transport.
On 7 April 2017 Mr Bogoevski made an application for DSP, citing his medical conditions as Ischemic heart disease, diabetes, hypertension, dyslipidaemia and anxiety disorder.
On 14 February 2018 Centrelink conducted a face-to-face job capacity assessment (JCA) on Mr Bogoevski. The JCA awarded him five points under Table 1 functions requiring physical exertion and stamina in relation to his Ischemic heart disease, having found the following:
[Ischemic heart disease] is fully diagnosed treated and stabilised for the Department of Human Services purposes. Customer has engaged in reasonable treatment. The diagnosis has been confirmed by a cardiologist. Significant improvement is not likely expected in the next two years.
[Depression] condition is considered fully diagnosed, but not fully treated and stabilised for the Department of Human Services purposes. Customer has not engaged in reasonable treatment. The diagnosis has been confirmed by a psychiatrist/clinical psychologist and significant improvement is likely expected in the next two years with reasonable treatment from the psychologist or psychiatrist.
While diagnosis of the conditions diabetes, hypertension and hyperlipidaemia are included in the current medical evidence by medical practitioner, the customer confirmed that the conditions have minimal functional impact on day-to-day functioning
The customer has a recommended baseline work capacity of 15 – 22 hours per week due to restrictions impacted by shortness of breath, mood and tiredness
On 20 August 2018, on internal review, a departmental Authorised Review Officer (ARO) affirmed the earlier Centrelink finding. The ARO awarded a total impairment rating of five points, stating the following:
The most recent JCA report noted this condition was fully treated and stabilised and assessed a 5 point rating from Impairment Table 1 which relates to physical exertion and stamina. I have decided a 5 point rating Table 1 is to be applied for this condition. This rating applies as the JCA report notes in part that you advised of having difficulty with chest pain, shortness of breath, tiredness, walking greater than 10-20 minutes, and you perform all activities of daily living at your own pace, with rest after every 5-10 minutes. Dr Ahmadi notes you suffer from chest pain and shortness of breath. This equates to a 5 point rating from Table 1. There was insufficient medical evidence for a higher rating to be assessed.
I have found your conditions of depression and anxiety, diabetes, hypertension and hyperlipidaemia cannot be considered permanent and able to have an impairment rating assessed, as there was insufficient medical evidence to support that was the case at the time of your claim.
I have found you do meet the program of support requirements at the time of your claim relevant to this review.
The Job Capacity Assessor indicated in the most recent JCA report that you had a temporary work capacity of 0-7 hours per week until 11 August 2018 and 15-22 hours per week within 2 years, with appropriate assistance from a Disability Management Services provider.
I accept the types of work appropriate to you may be more limited due to your conditions. However, based on the available evidence, I consider you have the capacity to undertake light less skilled work of at least 15 hours per week in the next two years. Your medical conditions would also not prevent you from undertaking a training activity to prepare you for alternative work within two years.
On 27 November 2018 the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT Tier 1) affirmed the decision of the ARO to reject Mr Bogoevski’s DSP claim. The AAT Tier 1 awarded Mr Bogoevski an impairment rating of five points finding:
·cardiovascular disorder, hypertension and hyperglycaemia: were fully diagnosed treated and stabilised during the qualifying period. The Tribunal was satisfied that further attempts at treating these conditions were not going to significantly affect Mr Bogoevski’s long-term functional capacity; they found Mr Bogoevski sometimes experiences shortness of breath and chest pain, and had difficulty managing some of the heavier household chores and awarded five points under Table 1 – functions requiring physical exertion and stamina;
·psychological conditions and alcohol dependency: accepting these conditions had been diagnosed during the qualification period, they were not fully treated and diagnosed and therefore the Tribunal was unable to assign any impairment points to these conditions;
·type II diabetes: was unable to assign any impairment points due to the lack of detailed medical evidence regarding this condition; and
·the issue of whether Mr Bogoevski had a continuing inability to work did not need to be addressed as he did not have the requisite 20 impairment points
On 28 February 2018, Mr Bogoevski sought a review of the AAT Tier 1 decision by this division of the Tribunal, stating in his application: “I believe the decision is wrong because I have supplied all medical records/information relating to my illnesses. With all the stress and depression I am unable to work, which leads to financial stress”.
In accordance with Schedule 2, section 4(1) of the Social Security (Administration) Act 1999 (Administration Act) Mr Bogoevski’s qualification for DSP is to be determined from the date of his claim to a date 13 weeks thereafter, that being 7 July 2017 (the qualifying period).
Relevant Legislation and Issues
Section 94(1) of the Act provides that a person is qualified for a DSP if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person's impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) the person has a continuing inability to work;
…
The Impairment Tables require that an impairment rating can only be assigned if the condition causing that impairment is “permanent”.[1]
[1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) s 6(3)(a).
Section 6(4) of the Impairment Tables states that a condition is “permanent” if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
The introduction to each relevant Impairment Table requires that “self-report of symptoms alone is insufficient” and that “there must be corroborating evidence of the person’s impairment”.
Section 6(5) of the Impairment Tables states:
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)     whether there is corroborating evidence of the condition; and
(b)     what treatment or rehabilitation has occurred in relation to the condition; and
(c)     whether treatment is continuing or is planned in the next 2 years.
Section 6(6) of the Impairment Tables states:
For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b) the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
For the purposes of section 6(7), reasonable treatment is treatment that:
(a)      is available at a location reasonably accessible to the person; and
(b)      is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional   capacity; and
(d)      is regularly undertaken or performed; and
(e)      has a high success rate; and
(f)       carries a low risk to the person.
The determinative issue in this review is whether, during the qualifying period, Mr Bogoevski suffered an impairment of 20 points or more under the Impairment Tables; and, if so, whether he had a continuing inability to work.
The Impairment Tables are function-based rather than diagnosis-based. They describe functional activities, abilities, symptoms and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of impairment and not to assess conditions.[2]
[2] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) Part B, s 5(2).
Section 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could do; not on the basis of what a person chooses to do or what others can do for the person.
Section 6(8) of the Impairment Tables further provides that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned. In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment from the condition may not result in any functional impact.
It is necessary, therefore, to consider the Applicant’s medical conditions with reference to the applicable Impairment Tables.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included documents provided by the Respondent under section 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents”, supplementary T documents, and additional medical reports which were provided by Mr Bogoevski.
DOES MR BOGOEVSKI HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
Section 94(1)(a) of the Act provides that to qualify for DSP, in the first instance, a person must have an impairment.
The Respondent accepts that Mr Bogoevski is living with cardiovascular disease, hypertension and hypoglycaemia, alcohol abuse disorder and a mental health condition. The Tribunal finds that Mr Bogoevski was living with impairments during the qualifying period and therefore meets the requirements of section 94(1)(a) of the Act.
As noted above, section 94(1)(b) of the Act states that the second requirement to qualify for DSP is that the person’s impairments rate 20 points or more under the Impairment Tables.
DOES MR BOGOEVSKI HAVE MEDICAL CONDITIONS THAT CAN BE RATED AT 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES?
Cardiovascular disease, hypertension and hypoglycaemia
Dr Bo Xu, cardiologist, observed in a medical report of 9 March 2016 that:
An exercise stress echocardiogram occurred at Werribee Heart on 3 March 2016. His exercise performance was poor for his age at four minutes and 48 seconds, limited by dyspnoea. He was able to achieve 92% of maximal predicted heart rate. Resting echocardiogram demonstrated mildly increased LV wall thickness with normal left ventricular ejection fraction. Following maximal stress, there was basal inferior, basal inferoseptal and mid posterior wall hypokinesis.
A St Vincent Hospital Discharge Summary completed on 9 May 2016 reported that Dr Robert Whitbourn had performed a ‘COR ANGIO +/- PCI’ on Mr Bogoevski on 2 May 2016. A coronary angiogram is a procedure where a catheter is inserted into the coronary artery via a leg or wrist artery to run dye to produce a picture of any blockages or narrowing. If a narrowing is identified, the operator can immediately go ahead with a percutaneous coronary intervention where a balloon is inserted and inflated to widen the narrowed artery and finally a stent is inserted to hold the artery open. This procedure is done regularly to abort a developing heart attack or to treat angina.
A Catheterisation Laboratory Report dated 30 May 2016 under the name of Associate Professor Robert Whitbourn, cardiologist, indicates Mr Bogoevski had a successful angioplasty and stenting of the circumflex and marginal branches using drug eluding stents procedure. The report describes Mr Bogoevski as a 54-year-old man with a history of Ischemic heart disease and previous chest pain with positive stress echocardiogram in non-LAD territory.
Dr Reza Ahmadi, general practitioner associated with Mr Bogoevski’s claim for DSP, completed a medical report dated 4 July 2017. In the report, Dr Reza Ahmadi diagnoses Ischemic heart disease as one of the conditions significantly impacting Mr Bogoevski’s capacity to work. The report identifies the condition as permanent, with onset in 2016 of the symptoms of tiredness, chest pain and shortness of breath. It further states that the treatment is medication with review by cardiologist.
Dr Arul Baradi, cardiologist, indicated in a letter dated 5 June 2017 that Mr Bogoevski suffered from Ischemic heart disease, hypertension and hyperlipidaemia. He reported:
He does not seem to be having any problems with recurrent chest pain. …Cardiac examination was otherwise essentially normal.
Given his complex PCI multiple stents last year, I think we should keep him on an extended duration of dual antiplatelet therapy.
Dr Ahmadi, in a report dated 13 February 2018, diagnoses Ischemic heart disease as one of the conditions significantly impacting Mr Bogoevski’s capacity to work. Dr Ahmadi identified the condition as permanent, with symptoms of chest pain and shortness of breath, and stated the treatment is medication.
Dr Ahmadi, in a report dated 10 June 2019 that was prepared for the AAT hearing, states:
He was diagnosed as Ischemic heart disease in May 2016 following investigation done regarding his symptoms which had started few months beforehand. His symptoms started with shortness of breath and chest tightness on minimum physical activities, and further investigation done by stress echocardiogram and eventually angiogram confirmed the diagnosis.
This condition is a lifelong medical condition, however by treatment and management plan the symptoms should be under control.
The impact on his function will continue more than two years.
In 4 March 2016 he had stress echocardiogram in Werribee Heart Centre which result was suspicious for Ischemic changes. Then he was referred to St Vincent Hospital and in 2 May 2016 underwent angiographym with PCI. Ever since, he has been care of cardiologist in Werribee Heart Centre on a regular basis and has been taking medication required for this medical condition.
He has had a good compliance with his management plan.
At this stage every six months he needs to have heart assessment done by echocardiogram to check his heart function, and that would an ongoing follow up for him.
He doesn’t need to use any walking aids at this stage.
Despite being treated by PCI and medications, he still suffers from occasional exertional shortness of breath and chest tightness which affects his capacity to walk for long distances (not more than 500m) however he is fine for short light walking for shopping etc. He is not able to perform strenuous physical activities, exercise, climbing stairs and run, digging, moving and carrying heavy objects.
Mr Bogoevski advised the Tribunal that his heart condition is having the greatest impact upon his functionality and he is grateful to his general practitioner who has a plan to assist him with all his medical conditions. He also advised that he sees his general practitioner on a fortnightly basis and is still under the care of his cardiologist, who reviews his condition annually. Furthermore, he said that he takes a considerable amount of medication and does everything slowly at his own pace. This is because he lives on his own and has no one to help him with daily activities, but as there is only himself to look after, he can manage.
The Tribunal explored the functional impact of impairment under Table 1 of the Impairment Tables, because his accepted condition of cardiovascular disease impacts on his stamina and breathing. In particular, the Tribunal explored his capacity in respect of a moderate functional impact. Table 1 states:
Table 1 - Functions Requiring Physical Exertion and Stamina – 10 points
There is a moderate functional impact on activities requiring physical exertion or stamina.
(1)       The person:
(a)       experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:
(i)        is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or
(ii)     has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
(b)       is able to:
(i)        use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and
(ii)     perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).

Mr Bogoevski gave evidence that during the qualification period:
·chest pain varies and there is no pattern to it, but he does feel pain in his chest. He regularly runs out of breath and was having trouble breathing just sitting through the hearing. He even felt he was running out of breath while sleeping and will often get up at night to walk around;
·can walk short distances, perhaps 400 to 500 m, but he must stop regularly. He takes everything slowly. The shopping centre is across the road from his home; he walks the short distance to the traffic light, crosses with lights, will often be assisted by the people in the store and then slowly with breaks walks home. He utilises the bus for most of his activities, as he is unable to walk great distances;
·he does live by himself and undertakes household activities, but only light activities and no gardening. As there is only him, washing the dishes is one plate and one glass, and he does it slowly at his own pace. He might sweep up where he has been eating but he probably only vacuums once a month at his own pace and washes his clothes every two weeks, again at his own pace, avoiding walking fast or lifting heavy objects;
·he is able to utilise public transport slowly at his own pace and he does occasionally catch the bus to Werribee Plaza, but it is a short walk to the bus stop from his home and from the bus stop to the inside of the centre. He knows where he can find seats so he can regularly sit down. If he walks too fast or for too long, he gets dizzy and there had been occasions where he has fallen down; and
·he could not work as he takes a great deal of medication, some of which makes him quite drowsy, and results in him being unable to leave the house until about 2 PM as it takes him this long to get up and ready to go.
The Respondent accepted that Mr Bogoevski’s cardiovascular disease was fully diagnosed treated and stabilised during the qualifying period, and could be appropriately assessed under Impairment Table 1 - Functions Requiring Physical Exertion and Stamina. However the Respondent asserted that at most a five point impairment rating could be awarded based on the corroborating evidence of Mr Bogoevski’s cardiologist and general practitioner.
The Respondent asserted that the evidence of Mr Bogoevski at the hearing confirmed that he was able to cross the road to do the shopping, use public transport without assistance, lived alone and managed tasks of daily living. This, they contended, was corroborated by the reports of Dr Xu who stated Mr Bogoevski’s “exercise performance is around 1 km on flat ground. He has never experienced any chest pain. Cane becomes particularly short of breath on climbing stairs”. They also contended that their position was corroborated by the reports of Dr Ahmadi who stated that Mr Bogoevski “still suffers from occasional exertional shortness of breath and chest tightness which affects his capacity to walk for long distances (not more than 500 m) however he is fine for short light walking for shopping etc. He is not able to perform strenuous physical activities”.
The Tribunal concludes that Mr Bogoevski’s cardiovascular disease was having a moderate functional impact on activities requiring physical exertion and stamina in accordance with Table 1 (Functions Requiring Physical Exertion and Stamina). Mr Bogoevski reported (and this was corroborated by his treating practitioners) that during the qualifying period, he experienced frequent symptoms of shortness of breath and fatigue when performing day-to-day activities around the home and the community. He stated that he was unable to walk far outside his home, needed to rely upon public transport and had difficulties performing day-to-day household activities such as gardening.
The Tribunal therefore awards Mr Bogoevski 10 points under Table 1 of the Impairment Tables in respect of this condition.
Alcohol abuse disorder
Dr Elizabeth Terziovski, clinical and forensic psychologist, in a report of 14 April 2014 opined:
He also presents with problematic alcohol use qualifying for a diagnosis of the DSM-5 diagnosis of Alcohol Use Disorder, Severe. Symptoms include consumption of large amounts of alcohol over a long period; unsuccessful efforts to control use; a great deal of time is spent related to alcohol; a strong urge to use alcohol; recurrent alcohol use resulting in a failure to fulfil obligations at work and home; continued alcohol use despite the problems associated at work, home and/or socially; occupational obligations are given up due to alcohol use; alcohol use in situations which are physically hazardous; continued use despite knowing it has exacerbated psychological difficulties; tolerance and withdrawal.
Dr Pawan Singla, psychiatrist, in a report of 29 May 2014 opined:
While his main issue seems to be alcohol dependence and abuse, but he is not motivated to quit it at all. He has lost his job, wife and possibly social group because of his drinking habit. Now he seems stressed because of all these stressors of relationship breakdown, financial stress and his inability to pay his home loan.
Dr Samuel Inwang, general practitioner in a medical report dated 28 November 2015 associated with Mr Bogoevski’s previous claim for DSP, diagnoses “alcohol use disorder; severe”. The report indicates symptoms such as the consumption of large amounts of alcohol over a prolonged period. It identifies that Mr Bogoevski would benefit from cognitive behavioural therapy and addiction counselling, but that there were barriers because of his denial of his alcohol addiction.
Mr Bogoevski advised the Tribunal he is no longer drinking and did not believe he was drinking during the qualifying period. He had given up because of the impact upon his heart condition and he could no longer afford to consume alcohol.
Mr Bogoevski advised the Tribunal he had stopped working because he had started having serious health issues, was under a great deal of stress because of his marriage breakup, and that he was eventually terminated because of his alcohol issues. He advised he had started seeing the psychologist because of his alcohol issues, he needed to deal with these so that he could address his heart complaint, and that he had attended the psychologist because he wanted to deal with his alcohol abuse. He did not accept that the report inferred he was not willing to address his alcohol abuse.
The Respondent accepts that Mr Bogoevski’s alcohol abuse disorder was diagnosed during the qualifying period but was not fully treated or stabilised, as Mr Bogoevski’s treating psychologist and psychiatrist had both recommended he attend drug and alcohol counselling as they perceived he would benefit from such treatment. The treaters had also documented Mr Bogoevski’s denial and unwillingness to give up alcohol or consider drug and alcohol services. Therefore they contended nil points could be assigned under the Impairment Tables for this condition.
Having considered all the evidence before it, the Tribunal is satisfied that Mr Bogoevski’s long-standing alcohol abuse disorder was fully diagnosed, but not treated and stabilised during the qualifying period. This is because there is no corroborating evidence that Mr Bogoevski sought recommended treatment for this condition. Whilst the Tribunal applauds Mr Bogoevski’s efforts to manage this condition, there is no medical evidence to substantiate his claims that he has stopped drinking. As such, nil points can be assigned to this condition under Table 6 (Functions Relating to Alcohol, Drug and Other Substance Use).
Mental health condition
Dr Terziovski, in a report of 14 April 2014, opined:
Mr Bogoevski presented with symptoms of depression including sleep difficulties, decreased appetite (excessive weight loss), feelings of hopelessness and helplessness, loss of energy, fatigue, lowered mood, lack of interest in activities he enjoyed in the past, feeling sad much of the day and rumination about his separation from his wife and subsequent Intervention Order (IVO) against him which has resulted in no contact with his wife since November 2013. He also reported feeling increasingly stressed due to financial pressures namely paying his mortgage. He stated he has drunk alcohol daily for 15 years, however since his separation and subsequent lack of finances he has been forced to decrease his intake exacerbating his psychological distress. It seems Mr Bogoevski has utilised alcohol as a coping mechanism for his psychological distress for the past 15 years. He also presented with anxiety including excessive worry and many of the physical sensations that occur when anxious including sweating, increased heart rate, shallow breathing and muscle tightness.
He stated that his last employment position was terminated after several warnings related to his alcohol use. He stated that he would drink at work.
Mr Bogoevski scored in the extremely severe range for depression, the severe range for anxiety and the moderate range for stress.
It appears that Mr Bogoevski’s diagnosis of major depressive disorder, symptoms of anxiety and his alcohol use disorder are likely to continue without long-term psychological treatment. His financial pressures will also continue to exacerbate his psychological distress without a long-term resolution. Given Mr Bogoevski’s diagnoses and current stressors, I support his application for the disability support pension.
Dr Pawan Singla, in a report of 29 May 2014, opined:
He was seeking DSP. While we may say he has adjustment problems with some mild depressive symptoms but he does not seem to have any major mental health problems. He does not seem to have major depression. His risks are low but these may fluctuate with his social situations and his drinking.
He does not seem to need any medications at this stage. If he remains distressed and anxious you may consider an antidepressant.
I discussed drug and alcohol services with him but he did not seem motivated.
Dr Terziovski, in a report of 15 February 2015, stated:
Mr Bogoevski attended his first session on 30 January 2014 and has subsequently attended six sessions.
Mr Bogoevski’s symptoms, test results and presentation support the Diagnostic and Statistical Manual – Fifth Edition (DSM-5) diagnosis of Major Depressive Disorder, Recurrent, Severe with Anxious Distress….. I have begun to educate Mr Bogoevski with regard to his symptoms of depression with anxiety and discussed some techniques however it seems that he finds his situation hopeless and struggles to retain the information therefore any gains have been quite small.
Dr Ahmadi, in a report associated with Mr Bogoevski’s claim for DSP dated 4 July 2017, diagnosed anxiety as one of the conditions significantly impacting Mr Bogoevski’s capacity to work. Dr Ahmadi identified the condition as permanent, with onset in 2014 of symptoms of stress, anxiety, lack of concentration and motivation, and constant worry about things around. Dr Ahmadi further reported that treatment in the past has been nil, but he was currently undertaking cognitive behaviour therapy and was planning to be reviewed by a psychologist.
Mr Bogoevski advised the Tribunal he had commenced seeing a psychologist at the suggestion of his general practitioner to deal with the major stressors in his life. He had undergone regular treatment for a considerable time, and stopped seeing the psychologist as it was felt the sessions were no longer assisting and that he was probably not going to get any better or worse. Mr Bogoevski also advised he was at the point where he knew how to deal with these issues, he had stopped thinking “silly thoughts” about ending his life and that he was more stable. He stated that in consultation with his general practitioner, he had concluded his counselling sessions to focus on his other serious health issues. The psychologist said that if he needed to return he could do so, but he and his general practitioner felt they could manage his issues now especially as he had given up drinking and many of the stressors no longer exist.
Mr Bogoevski advised the Tribunal that the process of applying for his DSP had impacted upon his mental health as the process had been extremely stressful, frustrating and confusing. He further advised that on numerous occasions during the process he had not had an interpreter present to assist, and he often felt the Centrelink staff had not completely understood the situation. He told the Tribunal he had applied for the DSP in 2017 but had waited 10 months for a JCA and for his claim to be rejected. He simply did not understand why Centrelink did not believe his doctors assertion that he could not work.
At the hearing, Table 5 – Mental Health Function of the Impairment Tables (Table 5) was explored in respect of the functional impact of Mr Bogoevski’s mental health condition, with a focus on whether or not he has a moderate impairment.
Table 5 – Mental Health Function - 10 points
There is a moderate functional impact on activities involving mental health function.
(1)       The person has moderate difficulties with most of the following:
(a)       self care and independent living;
Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.
(b)       social/recreational activities and travel;
Example 1: The person goes out alone infrequently and is not actively involved in social events.
Example 2: The person will often refuse to travel alone to unfamiliar environments.
(c)        interpersonal relationships;
Example: The person has difficulty making and keeping friends or sustaining relationships.
(d)       concentration and task completion;
Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).
Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).
(e)       behaviour, planning and decision-making;
Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.
Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).
Example 3: The person’s activity levels are noticeably increased or reduced.
(f)        work/training capacity.
Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.
Mr Bogoevski gave evidence that during the qualification period:
·he can care for himself as he lives alone, but does it slowly;
·he did not and does not go out or have any friends. He might run into somebody at the shopping Plaza but he has noticed that people walk away from him when he approaches, even people from the Macedonian community. He does not belong to any clubs; his only social activity in 2017 was attending English classes and this was suspended due to his health issues at the time;
·he had difficulty maintaining relationships as demonstrated by his marriage breakdown;
·he had great difficulty concentrating and often cannot complete tasks;
·he had difficulty planning and making decisions because of the stress involved, and lives a simple life; and
·he had enormous conflicts within the workplace due to enormous stresses in his life such as his heart condition, dealing with Centrelink, financial issues (he eventually lost his house) and the breakdown of his marriage. He had no money so decided to “end it all”. He thinks he is actually more stable now than at the time of qualification as some of these issues have been resolved and he is now renting and living a quieter life.
The Respondent contended that Mr Bogoevski’s mental health condition was not fully diagnosed during the qualifying period. The Respondent preferred the report of Dr Singla, as he was best qualified to assess mental health conditions, given his specialist expertise and qualifications. Dr Singla opined that Mr Bogoevski did not have major depression or any major mental health problems.
The Respondent further contended that even if the Tribunal found Mr Bogoevski’s mental health condition was fully diagnosed during the qualifying period, it could not be satisfied it was fully treated or stabilised as Mr Bogoevski had only undertaken a short course of counselling. Additionally, Dr Terziovski and Dr Singla had recommended that Mr Bogoevski would benefit from psychological counselling and medication should be considered, if his distress continued. Furthermore, they contended that Mr Bogoevski’s mental health condition could not be considered in isolation as it was co-morbid with his alcohol abuse, which they contended was not fully treated and stabilised as he had not undertaken any specific treatment for his alcohol abuse.
The Respondent contended that, if the Tribunal found that Mr Bogoevski’s mental health condition was fully diagnosed, treated and stabilised during the qualification period, a five point rating at most should be awarded under Table 5.
Having considered all the evidence before it, the Tribunal is satisfied that Mr Bogoevski’s long standing mental health condition described as depression was fully diagnosed treated and stabilised during the qualifying period, preferring the evidence of Dr Terziovski who had reviewed and treated Mr Bogoevski over a period of two years. During the hearing it was evident from Mr Bogoevski’s evidence that he had developed a rapport with Dr Terziovski and had benefited from the counselling but had discontinued to concentrate on his other major health issues. It was clear that he was now relying upon his treating general practitioner to support him in dealing with the stresses in his life that were causing depression.
Additionally the Tribunal was informed by the medical reports of Mr Bogoevski’s general practitioners who have consistently reported Mr Bogoevski has been suffering from major depression since 2014.
The Tribunal considered that Mr Bogoevski’s depression was having a moderate functional impact on activities requiring mental health function in accordance with Table 5. Mr Bogoevski reported (and this was corroborated by his treating clinical psychologist) that during the qualifying period he experienced lack of energy, motivation or interest in life, lack of concentration, constant worrying about his situation, lack of enjoyment from previously enjoyed social activities and lack of pleasure. He further reported that whilst he could care for himself he did not socialise, he did not travel alone, all his relationships have broken down, he could not concentrate, plan or make decisions and had been involved in conflicts in the workplace.
The Tribunal considered that Mr Bogoevski’s mental health condition could be assessed in isolation of his alcohol abuse. It finds that the functional impact of his mental health condition could be assessed as it was the underlying condition that may have given rise to his alcohol abuse, and relies upon the evidence Dr Terziovski which stated:
It seems Mr Bogoevski has utilised alcohol as a coping mechanism for his psychological distress for the past 15 years. He also presented with anxiety including excessive worry and many of the physical sensations that occur when anxious including sweating, increased heart rate, shallow breathing and muscle tightness. He stated that these sensations and emotional distress is heightened when he is not drinking, indicating that alcohol is his way of self-medication.
The Tribunal therefore awards Mr Bogoevski 10 points under Table 1 of the Impairment Tables in respect of this condition.
IMPAIRMENT RATING
The Tribunal has found that Mr Bogoevski has an overall impairment rating of 20 points, with 10 points allocated under Table 1 (Functions Requiring Physical Exertion and Stamina), 10 points allocated under Table 5 (Mental Health Function) and nil points under Table 6 (Functions Related To Alcohol, Drug And Other Substance Use). Therefore Mr Bogoevski satisfies section 94(1)(b) of the Act.
DOES MR BOGOEVSKI HAVE A CONTINUING INABILITY TO WORK?

To qualify for the DSP Mr Bogoevski must not only have an impairment with a rating of 20 points or more under the Impairment Tables, he must also demonstrate he has a continuing inability to work. Mr Bogoevski would be considered to have a continuing inability to work if he has actively participated in a program of support within the meaning of section 94(3C) of the Act prior to his claim for DSP, and his impairment is of itself sufficient to prevent him from doing any work independently of a program of support. A person with a severe impairment is not required to satisfy the Secretary that they have actively participated in a program of support; a person’s impairment is a severe impairment if it attracts 20 points or more under a single table.
The Tribunal has strictly applied the program of support requirement, finding that no power exists to dispense with the operation of section 94(2)(aa) of the Act, and it is irrelevant whether an applicant was aware of the requirement or not.
Mr Bogoevski has not been found to have a severe impairment of 20 points under a single table. Therefore, he must have participated in a program of support for the requisite 18 months prior to his claim. The Respondent provided evidence which indicated that Mr Bogoevski had completed such a program within the required timeframe and accepted that he satisfied section 7(1) of the Social Security (Active Participation for Disability Support Pension) Determination 2014. The Tribunal accordingly finds that Mr Bogoevski had completed a program of support and therefore does satisfy section 94(3C) of the Act.
The Respondent contended that Mr Bogoevski had a continuing ability to work. The Respondent relied upon the JCA of 14 February 2018 which determined that Mr Bogoevski had a capacity for work within two years with intervention of 15 to 22 hours per week.
The JCA of 14 February 2018 was conducted face-to-face by a physiotherapist and reviewed by a contributing assessor, a registered psychologist. The report determined:
The customer has a recommended baseline work capacity of 15 to 22 hours per week due to restrictions impacted by shortness of breath, mood and tiredness. This impacts upon the type and duration of work that the customer can engage in. Despite workplace support, the customer has been unable to engage in employment since 2013. The customer’s work capacity is expected to remain the same at 15 to 22 hours per week. Given the customer’s demonstrated inability to work previously at or above this work capacity, disability specific intervention in the form of workplace modifications is likely to result in the client achieving this work capacity within 24 months. The customer has a verified condition which may significantly impact on the customer’s work capacity, the period of reduced capacity will continue for the next six months to allow the customer to complete a medical intervention (Cardiologist reviews).
Dr Terziovski, in a report of 14 April 2014, supported Mr Bogoevski’s application for a DSP:
His financial pressures will also continue to exacerbate his psychological distress without a long-term resolution. Given Mr Bogoevski’s diagnoses and current stressors, I support his application for the disability support pension
Dr Inwang provided an assessment of Mr Bogoevski’s work capacity in a report of 28 November 2015:
Mr Bogoevski’s cognitive functioning seems impaired due to his mental health issues, addiction and suspected acquired brain injury which is yet to be determined. Patient cannot afford the cost required to investigate/confirm the acquired brain injury.
Mr Bogoevski seems to be unlikely to find suitable employment due to the issues described above and his language barrier will make this extremely difficult therefore he will remain feeling helpless. His financial situation will not improve without the DSP. This will make his condition pervasive with chronic inability to function.
The Tribunal notes that there seems to be no uniform preference in the decisions of the Tribunal on whether the conclusions in a JCA report or a medical report should be preferred, for the purpose of assessing a continuing inability to work. This Tribunal does not think an absolute preference should be expressed for either report; rather, the preference should be made on a case-by-case basis, taking into account the usual matters relevant to assessing the probative value of a report. Such matters include the field of expertise and qualifications of the person who wrote the report (or who made assessments forming part of the report), the duration and frequency of the report, the writer’s relationship with the person who is the subject of the report, and the reliability and depth of the analysis within the report.
The Tribunal concluded that Mr Bogoevski satisfied section 94(2) of the Act as he has a continuing inability to work. In reaching this conclusion, the Tribunal relied upon the assessment of Mr Bogoevski’s treating doctors and notes the findings of the JCA report of 26 February 2018, which determined that Mr Bogoevski should be assigned a temporary work capacity of zero to seven hours per week until he had been provided with appropriate treatment and disability employment services support. As both these interventions have been provided over the last two years and Mr Bogoevski presents with no marked improvement, this is indicative that he has a continuing inability to work.
The Tribunal is therefore satisfied that Mr Bogoevski has a continuing inability to work.
CONCLUSION
The Tribunal is satisfied that, at the date of application, Mr Bogoevski was qualified to receive the DSP, as his impairments attracted 20 impairment points under the Impairment Tables and he satisfied section 94(1)(c) of the Act in that he had a continuing inability to work.
DECISION
The Tribunal sets aside the decision under review and in substitution determines that Mr Bogoevski satisfies all the requirements of section 94 of the Act and thereby qualified for the DSP as at the date of his claim.

I certify that the preceding 77(seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member

.........................[sgd].............................................
Associate
Dated: 6 November 2019

Date of hearing: 3 October 2019

Applicant: Self-Represented

Advocate for the Respondent: Ms Cailin Farrell

Solicitors for the Respondent:
Sparke Helmore Lawyers

[2019] AATA 4481

6 November 2019

Key Legal Topics

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Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Remedies

Date of hearing:	3 October 2019
Applicant:	Self-Represented
Advocate for the Respondent:	Ms Cailin Farrell
Solicitors for the Respondent:	Sparke Helmore Lawyers